Insults and Epithets: Are They Protected Speech?

It is a privilege to offer a lecture in this series named for Edward J. Bloustein. Not many lecture series honor sitting university presidents who deliver the first lecture in the series; but President Bloustein is the very rare president whose long tenure in office has been accompanied by continuing academic productivity. That achievement is remarkable. When I tentatively chose this topic a year ago, I knew it involved the application of philosophical insights to serious practical questions, the kind of work that President Bloustein has done so well. I also knew that the search for those aspects of human dignity that warrant legal protection bears a connection to his well-known writing on the tort right of privacy. What I did not realize was that what I was attempting to carry out was actually an approach to the first amendment that he recommended in his lecture two years ago. Considering Holmes and the clear-and-present danger test, he spoke of a pragmatic approach to speech ... founded on how it truly worked, the role it played in human experience .... What matters for a legal system is what words do, not what they say …. These remarks strikingly capture my own aspirations here. Extremely harsh personal insults and epithets directed against one\u27s race, religion, ethnic origin, gender, .or sexual preference pose a problem for democratic theory and practice. Should such comments be forbidden because they lead to violence, because they hurt, or because they contribute to domination and hostility? Or should they ·be part of a person\u27s freedom to speak his or her mind? Any country with a liberal democracy faces this dilemma. In the United States, one forum for resolution is the judiciary, which applies the first amendment and analogous state constitutional provisions. I shall look at insults and epithets in light of the different uses of language. This perspective hardly provides the last word about what insults and epithets should be allowed, but it helps illuminate what is at stake. I begin with some brief general comments about reasons for free speech and about uses of language. I then address the force of insults and epithets in various contexts. I consider four claims about the damage they may do, as measured against their value as expression. I then tie the analysis to existing and possible first amendment doctrine